updated 01:00 pm EST, Tue December 21, 2010

FCC approves net neturality rules despite GOP

The FCC today formally voted in favor of its proposed net neutrality rules. The agency voted three to two in favor of the rules, with Democrat commissioners voting in favor while Republicans opposed the rules. The rules will require companies on both wired and wireless networks to be transparent in how they disclose network management and prevent blocking of legal, safe apps as well as similar devices and services.

The rule includes a compromise for cellular access and will only enforce a ban on "unreasonable discrimination" on wired access, such as paying for faster access to certain sites. Mobile access is relatively new and doesn't necessarily need the extra step, according to the order. Customers will, however, have the option of filing any complaints about anti-competitiveness for free and will have a "Rocket Docket" option that should make a decision on a complaint within 130 days.

Both commissioners Michael Copps and Mignon Clyburn reiterated that they voted in favor of the rule despite reservations that they weren't as strict in the mobile space. Both argued that the Internet was the same regardless of its type. They were voting in favor of the rule only to put it back on the right path.

Copps reminded the FCC meeting that carrier objections to regulation were the same as those from the Carterfone rule from 1968. AT&T had insisted that any competing hardware or services attached to its network had to be banned but was denied because it couldn't prove that allowing competition would hurt its network. Its real objection was that it didn't make, sell or control the devices. "Sound familiar?" he asked.

The Republican commissioners, Robert McDowell and Meredith Baker, largely acted on behalf of the carriers' views and argued the FCC was overreaching its powers. McDowell was the most vocal, insisting that "nothing is broken" with the Internet and that the FCC was simply acting on a "predeterimined outcome" where it assumed carriers were malevolent. A clause from the 1996 Telecommunications Act giving the FCC "authority and discretion to settle on regulation" was misinterpreted, they insisted. They maintained that there were only nine instances of complaints about anti-competitiveness that were ruled in favor of the customers.

They also tried to promote fears often spurred first by the carriers, claiming that there would be unspecified costs to regulation and that companies would allegedly be hurt in their ability to expand the network.

McDowell and Baker further insisted that the FCC had tried to railroad the process and had scheduled the vote just before Christmas to create a minimum of opposition. Either had only received a significantly updated draft of the rules after 11PM the night before and thus didn't have enough time to draft a response. The two both suggested that these sort of regulations needed Congressional approval.

The move would likely be challenged in court, the right-wing commissioners said.

Genachowski concluded in saying, however, that the approach was deliberately shying away from both extremes, neither engaging in heavy regulation or letting certain technologies escape. He and Copps were both confident that it would appease those worried that the rules would allow pay-for-priority access on wired networks with the "unreasonable discrimination" clause.

Any competition issues or reductions in innovation in wireless would also be monitored even if not covered by the initial rules, the FCC chairman said. Some carriers explicitly supported the rules as a matter of balance.